Divorce

NOTE: FIRST CHECK IF THIS IS A ‘COMMUNITY PROPERTY STATE’ - IF SO, DON’T USE THIS LANGUAGE - INSTEAD, USE THE ONE CALLED “EXPLANATION OF COMMUNITY PROPERTY”

In general, whether or not property is subject to division in a divorce may depend on whether or not the court considers the property to be joint, marital property, or whether it is considered to be separate property of one spouse. In a divorce, ‘marital’ property is divided between the spouses - in states that follow the standard called equitable distribution, it means that it will be divided in a fair (equitable) way, which doesn’t necessarily mean 50%- 50%. Generally, most property, money, and debts that either spouse acquires during a marriage is considered to be marital/joint property, no matter who paid for it or whose name it’s in. However, there are exceptions to this rule. Property owned before the marriage, inheritances, or gifts in one person’s name, for example, may generally be considered individual property and not subject to equitable (fair) distribution in a divorce - but again, this has to be evaluated on a case by case basis. Separate property can become marital property in limited circumstances, such as if an inheritance given to one spouse is put into a joint account (commingled). Furthermore, in some states, if there is separate property that was improved upon or gained value during the marriage, such as a house that may have gone up in value, the amount of equity that was gained during the marriage may be subject to equitable distribution even if the property itself is not divided between the spouses. What’s marital property and what’s not can get complicated sometimes; sitting down with a lawyer can help you figure it all out if you’re unsure.

As a part of a divorce, marital property is usually split between the spouses, though not necessarily equally. What usually happens is that either the spouses will decide on a division of property that they can both agree to or a judge will divide the property, looking at a number of different factors. For links to more information on divorce in STATE, go here: LINK

Again, you may be able to get further help by contacting a lawyer, if you haven’t already. If you cannot afford one, you may be able to get help from a legal aid organization, who take some cases for free or at low cost - see here: LINK TO LAWYERS. If they can’t help you, they might be able to refer you to someone who can take your case on a sliding scale fee or pro bono. Some legal aid agencies that can give referrals don’t advertise that they do - you should be sure to specifically ask for a referral if you need one. In some states, the attorney may be able to ask the judge to order the higher-earning spouse to pay the lower-earning spouse’s legal fees if there is a big difference in income levels.